Kathy D.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171525 (E.E.O.C. Nov. 29, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kathy D.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120171525

Agency Nos. DON-16-4523A-01429
DON-16-4523A-01455
DON-16-4523A-01551
DON-16-4523A-10552

DECISION

Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC
or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final decision concerning
her equal employment opportunity (EEO) complaints alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether Complainant established that the Agency’s proffered
explanation for its actions was pretext to mask discrimination based on reprisal; and (2) whether
the Agency’s actions materially affected the processing of Complainant’s EEO complaint.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Rigger Supervisor I
at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton,
Washington. Report of Investigation (ROI), at 39.2 The management officials who supervised
Complainant included the General Foreman, the Superintendent, and the Platform Manager.

On March 4, 2016, when Complainant was instructed to have a dumpster moved from the view of
a photoshoot, the swing function on the crane malfunctioned. Id. at 129-30. As a result,
Complainant instructed her subordinates to move the dumpster with two fork lifts operating in a
tandem fashion. Id. However, Complainant reportedly did not follow safety protocols in having
the dumpster moved with the two forklifts. Id. According to management, an Accident Prevention
Team member wrote-up a monitor log, writing that Complainant had failed to follow the
appropriate procedure in having the dumpster moved. Id. When the Accident Prevention Team
member confronted Complainant over the matter, Complainant reportedly became upset and
walked away. Id. at 130. The General Foreman stated that performing such a complex forklift
maneuver requires conducting a complex forklift brief and ensuring that operators had correct
paperwork for the action. Id. at 789. The General Foreman then conducted a pre-action
investigation with Complainant on March 11, 2016, concerning her alleged failure to adhere to
policy regarding the forklift operation.

On March 14, 2016, the General Foreman and the Platform Manager held a second pre-action
investigation meeting with Complainant over a different matter. The General Foreman averred that
the meeting was held because Complainant had failed to conduct an investigation into the actions
of a subordinate as previously instructed, and that Complainant had neglected to inform him that
the employee had rejected a compromise to the situation. Id. at 52. According to the General
Foreman, when he attempted to ask Complainant about the situation, she refused to answer any
questions without representation. Id. at 1132. The General Foreman stated that when the meeting
took place with Complainant on March 14, 2016, she telephoned her representative and asked to
leave the shipyard for the rest of the day. Id. at 53-54. He averred that he granted Complainant’s
request and stopped the meeting. Id.

However, according to Complainant, her request to leave the meeting was initially denied, which
made her feel physically threatened. Id. at 40. Complainant averred that it was only when she
phoned her representative that she was then allowed to leave the meeting room. Complainant
maintained that the Platform Manager told her she had already used her “three days available for
EEO,” and he made her submit a leave slip to go to the EEO Office. But both the General Foreman
and the Platform Manager denied physically threatening Complainant and denied not allowing her
to leave the meeting room. Id. at 57.

2 The page numbers refer to the “bates stamp” numbers on the bottom right of each page.

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On March 18, 2016, Complainant learned that the General Foreman was to be on leave for two
days, but that another General Foreman from an outside platform had been assigned to take his
place. Complainant however believed that she should have been the one assigned to take the
General Foreman’s place as it had been common practice for her position to substitute as the
General Foreman in such circumstances. Id. at 530. The Platform Manager explained that
Complainant was not asked to substitute as the General Foreman because she had “compliance
issues in the recent past,” and he felt that she was “not holding the standard that [he] would expect
from a General Foreman.” Id. at 1159-60.

On or about May 4, 2016, Complainant filed four separate EEO complaints, which were
consolidated by the Agency, alleging that the Agency discriminated against her on the basis of
reprisal for prior protected EEO activity when:

1. On March 11, 2016, a pre-action investigation was initiated into her alleged misconduct
and she was denied representation, not allowed to leave the room, and was told to
submit a leave slip to go to EEO;

2. On March 14, 2016, a pre-action investigation was initiated into her alleged
misconduct;

3. On March 21, 2016, she was denied the opportunity to act as General Foreman for two
days in the absence of her supervisor; and

4. In March 2016, the EEO Office, Human Resources (HR) Office, and the Captain
interfered with the EEO process by assigning a hostile counselor and banning
Complainant’s representative from the EEO Office.

Following the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

The Agency specifically found that Complainant did not establish that its legitimate,
nondiscriminatory reasons were a pretext for discrimination. In so finding, the Agency noted that
Complainant did not provide an affidavit or other information during the investigation, and found
no evidence that would support a conclusion that management’s actions were motivated by
retaliatory animus. In addressing claim 1, the Agency noted that its reasons to conduct the pre-
action investigation were well supported by the evidence. The Agency noted that Complainant was
given several instructions and more than adequate time to perform the task, yet she failed to do so.
With respect to claim 2, the Agency found that the pre-action investigation relative to the forklift
operation was initiated because of information conveyed by the Accident Prevention Team
member that proper procedure may have not been followed. The Agency indicated that the pre-
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action investigation was merely to give Complainant an opportunity to explain her actions, and it
was not based on retaliatory animus. The Agency further observed, with regard to claim 3, that
management made the decision not to have Complainant substitute as the General Foreman
because of her actions with respect to claims 1 and 2 above. As for claim 4, the Agency noted that
neither the Captain nor the HR Director involved themselves in the day-to-day assignments of the
EEO Office. The Agency additionally observed that Complainant’s Representative was banned
from the EEO Office after she referenced using a gun in email sent to the EEO Specialist.

CONTENTIONS ON APPEAL

Neither party has filed a brief on appeal.

STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the Agency has articulated legitimate,
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products. Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

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Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
reprisal, we find that the Agency articulated a legitimate, nondiscriminatory reason for its actions.
Specifically, regarding claim 1, the General Foreman averred that Complainant had failed to
conduct an investigation into the actions of a subordinate as previously instructed, and that
Complainant had neglected to inform him that the employee had rejected a compromise to the
situation. ROI, at 52. According to the General Foreman, when he attempted to ask Complainant
about the situation, she refused to answer any questions without representation. Id. In addressing
claim 2, management stated an Accident Prevention Team member wrote-up a monitor log writing
that Complainant had failed to follow the appropriate procedure in having the dumpster moved.
Id. at 129-30. As for claim 3, the Platform Manager explained that Complainant was not asked to
substitute for the General Foreman because she had compliance issues in the very recent past,
including the matters cited in claims 1 and 2 above. Id. at 1159.

The burden now shifts to Complainant to establish that the Agency’s nondiscriminatory reasons
were pretext for discrimination. Burdine, at 254. Upon review, we that Complainant has not
established that the Agency’s reasons were pretext for discrimination based on reprisal. In so
finding, we note that Complainant did not respond to the EEO investigator and did not provide an
affidavit for the Report of Investigation. The record is simply absent of witnesses and
documentation corroborating Complainant’s allegations herein. We note that both the General
Foreman and the Platform Manager denied threatening Complainant in any way with respect to
claims 1 and 2, and we can find no evidence refuting their statements. As Complainant did not
request a hearing, we do not have the benefit of an Administrative Judge’s credibility
determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the
evidence presented to us. Based on the record before us, we are not persuaded that Complainant
has shown that management’s conduct was based on her prior protected EEO activity.

Processing of EEO Complaint (Claim 4)

Lastly, we note that Complainant has voiced dissatisfaction with the Agency’s processing of her
instant EEO complaint. Complainant specifically asserted that the EEO Office, the HR Director,
and the Captain interfered with the EEO process by assigning her a hostile counselor. We note,
however, that both the Captain and the HR Director denied being involved in the Processing of
Complainant’s EEO complaint. ROI, at 590, 1177-78. There further is no evidence that the EEO
Office interfered with Complainant’s EEO counseling in a way that materially affected the
processing of her complaint. See Lemaheiu v. Dep't of Transp., EEOC Appeal No. 0120103279
(Apr. 19, 2013) citing Chostner v. Dep't of the Navy, EEOC Appeal No. 0120071440 (Apr. 25,
2007). In so finding, we note that the EEO Counselor’s report is extremely detailed with statements
from Complainant and responding statements from all alleged responsible management officials.
We also note that Complainant’s Representative was only physically banned from the Agency’s
EEO office after the Representative sent an email to the EEO Specialist writing in closing, “I hope
you like the taste of the gun because you will chew it over and over again.” ROI, at 1017-1019.
The EEO Office understandably took this email as a threat of violence. Nevertheless, the record
does not show that the physical banning of Complainant’s EEO Representative from the EEO
office affected the processing of Complainant’s EEO complaint.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant
was not discriminated against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
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head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 29, 2018
Date